Jenkins v Charles Sturt University [2008] NSWSC 50

New South Wales Supreme Court

CITATION : Jenkins v Charles Sturt University [2008] NSWSC 50

HEARING DATE(S) : 4 February 2008

JUDGMENT DATE : 13 February 2008

JUDGMENT OF : Malpass AsJ

DECISION : proceedings dismissed plaintiff to pay the costs of the proceedings

CATCHWORDS : ADMINISTRATIVE LAW - alleged denial of natural justice and error of law

LEGISLATION CITED : Supreme Court Act 1970 (NSW)

CATEGORY : Principal judgment

PARTIES : Dean Jenkins (Plaintiff) Charles Sturt University (Defendant)

FILE NUMBER(S) : SC 30009/07

COUNSEL : J I Ghabrial (Plaintiff) J Oakley (Defendant)

SOLICITORS : Intercept Law (Plaintiff) Eakin McCaffery Cox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Wednesday 13 February 2008

30009/07 Dean Jenkins v Charles Sturt University

JUDGMENT 1 HIS HONOUR: At all material times, the plaintiff was a policeman and enrolled at the defendant university. He was seeking an Associate Degree of Policing. 2 One of his subjects was Police Practicum (PPP231). Pursuant to the Academic Progress Regulations ("the Regulations"), PPP231 was designated as a key subject. The Regulations provide that a student shall pass each key subject in his or her course at no more than two attempts. The plaintiff made two unsuccessful attempts at the subject and was then excluded from the course. 3 Subsequently, he unsuccessfully pursued two internal avenues of appeal. The first of the two appeals was brought to the Faculty Exclusion Committee ("FEAC"). This appeal was dismissed on 12 October 2006. He then pursued an appeal to the Academic Appeals Committee ("the AAC"). This appeal was dismissed on 5 December 2006. 4 He then brought proceedings in this Court. The proceedings did not come on for hearing until 4 February 2008. During that time, the formulation of his case has undergone considerable change. An Amended Summons was filed on 16 October 2007. This document formulated the case that had been set down for trial. On the day of the hearing unsuccessful attempts were made to again vary the case and adduce new evidence. 5 The only relief available to the plaintiff in this Court is pursuant to s 69 of the Supreme Court Act 1970. Discretionary relief is available thereunder where there has been jurisdictional error or error of law on the face of the record. 6 The Amended Summons is a lengthy document. It has been supported by lengthy written submissions together with lengthy oral supplementation. The hearing occupied much of a day. The Amended Summons propounded cases in denial of natural justice and error of law. 7 I shall first look at the question of natural justice. It is a flexible concept. The concentration is on fairness. Each case can be expected to turn on its own particular facts. 8 Whilst the relief sought in the proceedings is restricted to the decision made by the AAC, there has been a broad ranging attack on both its decision and that of the FEAC. 9 There were limited grounds of appeal to FEAC. The plaintiff chose to pursue only one of them (that there were factors outside his control which contributed to his failure of the subject PPP231). The practice of the FEAC was to decide appeals on the papers. The plaintiff had made written submissions. He requested and was granted an interview with the presence of a support person. 10 Whilst in submissions it has been suggested that there was not an acceptance by the plaintiff that he had failed the subject, it seems to me to be clear from the material that this is not the case. 11 FEAC gave reasons for its determination. The reasons are as follows:- "The student was excluded because he failed PPP231, Police Practicum on his second attempt. This failure revolved mainly around his failure to complete his duty book in the manner required. The student appealed on the basis that there were factors outside his control which contributed to his failure to meet the required academic standard. In support of his appeal, the student submitted a two page report and six attachments. The student requested and was granted an interview. He also requested that he have a support person with him during the interviews. This request was granted. The material presented to the panel by the student was comprehensive. The student's presentation to the panel was competent and articulate. The student responded to the questions asked by the panel chair and was able to negate some of the issues raised in reports that were unfavourable to him. The panel accepts his response in these matters. However, the student could not explain his failure to complete the duty book as requested of him throughout the session, or show that his failure to do so resulted from factors outside his control. The panel felt that the student did not show that there were factors outside his control which contributed to his failure to meet the required academic standard, rather his failure to complete his duty book rested with him and him alone." 12 There were also limited grounds of appeal to the AAC. The AAC also dealt with appeals on the papers. The plaintiff appealed on both available grounds (that the correct procedures were not followed in deciding his appeal to FEAC and that there was a conflict of interest in the deciding of the appeal). 13 In respect of that appeal, he had legal assistance. He made written submissions which had been drafted by counsel. 14 The written submissions did not propound either of the two available grounds. In the circumstances of this case, the first of the second of the two was expressly abandoned. What was argued primarily was a matter that did not fall within the contemplation of either ground. The submissions comprised 18 paragraphs. Sixteen of those paragraphs propounded an argument to the effect that there had been error by reason of the fact that PPP231 was not a key subject. In addition to this matter, paragraphs 17 and 18 of the submissions were as follows:- "Mr Jenkins' secondary submission is that he was not notified that he had failed the subject before he was notified of his exclusion. Had Mr Jenkins been notified that he had failed the practicum he would have had the opportunity to seek review of that decision through the process outlined in clause 12 of the Assessment Regulations. The method used to notify Mr Jenkins that he was excluded had the effect of denying him a fair chance of having the Subject Coordinator, who would have a well developed appreciation of the particular pressures and exigencies of the Police Practicum, consider whether Mr Jenkins was disadvantaged on the grounds of illness or misadventure or unreasonable or prejudicial application to him of the assessment requirements." 15 The material before the Court indicates that in considering the appeal, the ACC did make inquiry, of its own volition, into a number of matters and that none of them were seen as justifying any relief. Following its determination, the plaintiff was informed that the appeal had been denied. There was no express statement of reason or process. 16 The problem for the plaintiff is that he challenges that decision only and it is conceded by him that the decision was not in error. 17 It is correct to say that there is no express dealing with what was sought to be raised in paragraphs 17 and 18 of the submissions. Implicitly, those matters have been rejected. In any event, these matters could not have been of any assistance to the plaintiff in an appeal from a determination of FEAC. The matters do not concern the determination made by FEAC. They concern matters that were either not done or done by others prior to its decision and they were not litigated before it. 18 In an endeavour to circumvent what might be regarded as an insurmountable barrier to success, the plaintiff has mounted a case which proliferates with allegations of denial of natural justice and suggests unidentified errors of law. 19 Leaving aside questions of relevance to what was before the AAC, largely, the submissions are founded on misconception (inter alia, as to the roles of FEAC and AAC). The submissions erroneously seek to impose, inter alia, inquisitional roles and other duties on both appellate bodies. The approach involved treating both tribunals as advisory bodies rather than bodies whose function was to make decisions on appeals. 20 The written submissions deal at great length with alleged denial of natural justice. The submissions comprise inter alia the following headings:- "Failure to (i) advise the plaintiff as to the specific reasons why he failed to meet the required standard with his Duty Book and (ii) investigate whether the Duty Book did not meet the required standard Failure to advise plaintiff that clause 3.5.1.1(c) of the Regulations did not apply to PP231 despite it being called a Practicum Subject Failure to check whether Senior Constable Lewis had authority to mark the plaintiff's Duty Book Failure of AAC to advise the plaintiff of the reasons behind its decision to exclude him from the course Failure of AAC to make a determination that FEAC followed the correct procedures Failure to advise the plaintiff of adverse comments made about his performance at work so he had an opportunity to answer the allegations" 21 It can be readily seen that such matters fall outside the scope of what was litigated in the appeal and/or the function of the AAC. 22 I have both read and listened to what has been said on the matters of denial of natural justice. In my view, the plaintiff has not demonstrated any denial of natural justice by the AAC. I should add that it is not sufficient to merely identify a denial of natural justice. There must also be materiality to the decision that is sought to be disturbed. Whether or not a different view was taken on the matters of denial of natural justice, the requirement of materiality would not be made out. 23 There has been an attack on the lack of disclosure of reasoning process by the AAC. The authorities well illustrate that what will suffice will vary from case to case. In the present case, the AAC rejected the only real issue raised in the submissions. In the circumstances of this case, the plaintiff was left in no doubt as to what had been decided and did not need any further exposition of reasoning process for the purposes of mounting a challenge to that decision. Indeed, as earlier seen, he accepts that the AAC was not in error in deciding that PPP231 was a key subject. 24 What was said on the matter of error of law lacked specificity and was doomed to failure. In my view, the plaintiff faced an impossible task to demonstrate either jurisdictional error or error on the face of the record. 25 As earlier mentioned, s 69 provides a discretionary relief. The exclusion of the plaintiff from the course was for a period of two years. The question of the utility of granting any relief was not ventilated in any argument. However, it may be observed that there has been delay in the bringing of these proceedings to hearing and the exclusion expires at the end of this year. 26 The plaintiff bears the onus of demonstrating an entitlement to relief. In my view, the onus has not been discharged. 27 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.